I was catching up on some of my Tivo'd (don'tcha love it when a proper noun becomes a verb?) shows and was watching The Daily Show's episode from Tuesday. After the obligatory faux news coverage the guest was some guy that wrote a book called Party of Death. Yes, that's right... there's a party in favor of death... can you guess which one?
Actually he was talking about not just a political party, the Dems, but also the Media and the Courts. Now ranting about the whole calling of names for a group of people and slamming the Media is interesting in its own right, but that is a rant for another day... Today I'm here to rant on that last group.. The Courts.
During the interview, the author, Ramesh Ponnuru, says that the Courts are a part of the Party of Death due to... wait for it... Legislation from the Bench. Yes the old favorite of the modern conservative that gets invoked any time they wish to place blame on someone but don't want to point at Lawyers or themselves.
Here's the problem with Legislation from the Bench, IT DOES NOT EXIST! That's right, it does not exist. How do I come up with the conclusion when so many of our well educated citizen elected representatives seem to claim it so? Find me one law on the books that was written by a Judge or Court of Judges. Just one is all I need, but you will not find one. Why not? Let's take a history lesson shall we?
There are three branches of government. Legislative, Executive and Judicial.
Now here's the twist of things. When a part of the Legislative branch, be it federal or state or local, passes a law, however poorly written, it is now out of their hands to decide how that law is used. The Executive branch is required to uphold the laws as the currently see them, but the Judicial branch is the ones that in the end determine if the law is being applied correctly and if enforcement needs to be changed. What gets the modern conservative's panties in an wad is when a law they either like or dislike gets challenged and the Courts decide in a way that does not favor their view of how said law should either be enforced or stricken down. The Court doesn't re-write the existing law nor do they up and write a new law that they feel needs to be in place. They simply decide how the existing laws should be handled (or not handled). Now the twist on this scenario is that if I am for or against a law and my side is against your side and you win... That's just the court upholding good law.. The other way around... Legislation from the Bench.
Which brings us to the root of the problem with the Legislation from the Bench argument... Some laws are bad laws, or badly written laws, and who is in charge of writing these laws... That's right, the Legislative branch. If the people who invoke the "from the bench" line focused their ire with the fact that if poorly written bills, no matter how good intentioned, were cleaned up long before they became laws (see I'm Just a Bill from Schoolhouse Rock for more info) the Courts would never have to get involved.
I could go on and on about the most popular cases that always get tossed into this argument... Roe v. Wade, Brown v. Board of Education., etc... but I've decided to see what kind of reaction I get from the rant as it is. I usually get interesting points from Larry about this topic so we will see where the discussion goes.
Flame as needed, I have my asbestos hat on....
Technorati Tags: Legislation from the Bench, Branches of Government
Actually he was talking about not just a political party, the Dems, but also the Media and the Courts. Now ranting about the whole calling of names for a group of people and slamming the Media is interesting in its own right, but that is a rant for another day... Today I'm here to rant on that last group.. The Courts.
During the interview, the author, Ramesh Ponnuru, says that the Courts are a part of the Party of Death due to... wait for it... Legislation from the Bench. Yes the old favorite of the modern conservative that gets invoked any time they wish to place blame on someone but don't want to point at Lawyers or themselves.
Here's the problem with Legislation from the Bench, IT DOES NOT EXIST! That's right, it does not exist. How do I come up with the conclusion when so many of our well educated citizen elected representatives seem to claim it so? Find me one law on the books that was written by a Judge or Court of Judges. Just one is all I need, but you will not find one. Why not? Let's take a history lesson shall we?
There are three branches of government. Legislative, Executive and Judicial.
- The Legislative branch is composed to the Senate and House of representatives. Article I of the Constitution established this
branch and gave Congress the power to make laws. - The Executive branch is the Offices of the President, Vice-President, department
heads (Cabinet members), and heads of independent agencies. The executive branch of Government makes sure that
the laws of the United States are obeyed. - The Judicial branch consists of the Supreme court of the US and all other courts both federal and state.
Article III of the Constitution
established this Court and all other Federal courts were created by
Congress. Courts decide arguments about the meaning of laws, how they
are applied, and whether they break the rules of the Constitution.
Now here's the twist of things. When a part of the Legislative branch, be it federal or state or local, passes a law, however poorly written, it is now out of their hands to decide how that law is used. The Executive branch is required to uphold the laws as the currently see them, but the Judicial branch is the ones that in the end determine if the law is being applied correctly and if enforcement needs to be changed. What gets the modern conservative's panties in an wad is when a law they either like or dislike gets challenged and the Courts decide in a way that does not favor their view of how said law should either be enforced or stricken down. The Court doesn't re-write the existing law nor do they up and write a new law that they feel needs to be in place. They simply decide how the existing laws should be handled (or not handled). Now the twist on this scenario is that if I am for or against a law and my side is against your side and you win... That's just the court upholding good law.. The other way around... Legislation from the Bench.
Which brings us to the root of the problem with the Legislation from the Bench argument... Some laws are bad laws, or badly written laws, and who is in charge of writing these laws... That's right, the Legislative branch. If the people who invoke the "from the bench" line focused their ire with the fact that if poorly written bills, no matter how good intentioned, were cleaned up long before they became laws (see I'm Just a Bill from Schoolhouse Rock for more info) the Courts would never have to get involved.
I could go on and on about the most popular cases that always get tossed into this argument... Roe v. Wade, Brown v. Board of Education., etc... but I've decided to see what kind of reaction I get from the rant as it is. I usually get interesting points from Larry about this topic so we will see where the discussion goes.
Flame as needed, I have my asbestos hat on....
Technorati Tags: Legislation from the Bench, Branches of Government
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Comments
Your point about the will if the people is flawed since we both know that just because the majority says something is the way it is going to be doesn't make their decision RIGHT. Slavery comes to mind quickly and what of those times when the minority make the decisions, and I'm not talking racial minorities, I'm talking Prohibition and Gun Ownership. Both of these are ideological views that a minority of WASP Americans held and force(d) upon the rest of the citizenry.
As for Roe v. Wade.... If it is overturned, it may be for ideological reasons, not not necessarily religious ones. The current makeup of the Supremes seem more inclined to say that the Constitution does not give blanket rights to citizens but that it gives specific rights and those not mentioned are given to the states. If that's the reason, I can live with it and what the states decide may be a point of contention.
Let me give you a fake example of overturning the will of the people. Missouri has a Constitutional amendment on Marriage being between a man and a woman, which passed by 75% of the population. It is clearly the will of the people of this fine state. A judge overturns it because of his own personal issue with it and in turn makes Gay Marriage now legal. That is not legislating from the bench in the true meaning of legislating but is now making something legal that never was legal before in this state. One judge and his views overturned the law of the land for centuries, the will of the legislature, a constitutional amendment of the Missouri Constitution, and the will of the people.
Did the judge legislate from the bench? I understand the truest sense of the term is no but the practical sense is yes. This happens on both sides.
Once again, the Judge did not decide what the law states. That Judge made a decision based on a case that was brought before him. And on that topic, Judges do not just up and decide one day, "Gee, I don't think I like that law. I think I'll decide that it is unconstitutional all by my self." Someone, somewhere has to make the conscience effort to find a lawyer (or not) and file a case claiming that the law is wrong or unconstitutional or contrary to another law or right.
Once again, the Judge did not write onto the books any new law. He simply, in your faux case, decided that an existing law was wrong. What the state Legislature decides to do now is up the them.
Originally I was not going to argue with you at all. I just threw out the questions for things to consider. But when I got your response, I just had to go further. By the way, that faux story was based on what happened in California. Luckily, a higher court realized that the judge was wrong and overturned it.
If you follow the News-Leader it appears that the majority of the Ozarks community does not like Mexian immigrants (be they legal or illegal). Interestingly, just because we perceive that the majority opinion is XXX does not make it so.
Also remember, that only 35% of people vote. So you can't really rely on a vote to speak for the whole.
And the whole, the majority (the perceived majority) must fight to maintain the majority and thus discrimination occurs, oppressing the minorities. People with disabilities come to mind.